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Yesterday’s post about Pakistan Rangers raid against Nine Zero has received a lot of attention. Much of it, unfortunately, negative. I saw unfortunately not because I am opposed to debate. Actually, I think it is sorely needed. But because the quality of the responses indicates a serious problem with the way we approach certain controversial issues.

The failure of judiciary to successfully try and convict terrorists resulted in the creation of military courts. This has gained widespread approval, but it faces serious questions both about the constitutionality and also the wisdom of handing more responsibility to the military at a time when it is busy carrying out operations to root out terrorist groups. However there is another issue which has not been widely discussed which is that military courts will eventually be faced with cases that could call into question the military’s credibility.

Civilian courts may have proven that they are not up to the task of convicting terrorists due to threats and intimidations. Military courts may be free of this burden, but they carry other burdens besides. Take the missing persons cases. Civilian courts have been almost completely blocked from moving forward with these cases due to the resistance of military and intelligence agencies. If these cases are taken up by military courts, can anyone expect the outcome to be unbiased? The problem is, even if the military court is completely objective, its decisions will always be under suspicion because the military has a vested interest in the outcome. Same can be true of cases against alleged terrorists like Zakiur Rehman Lakhvi who are members of groups that are widely believed to have or have had support from national agencies. Whether or not it is true is actually besides the point. What matters is that even if someone like Lakhvi is innocent, by acquitting him a military court will look like it is biased, and its credibility will be unnecessarily tarnished.

Supposedly the US has called for turning over suspects like Lakhvi to India, but this is obviously ridiculous. No Pakistani suspect could ever receive a fair trial in India. However, there is another option which is to refer the cases to the International Criminal Court. This is what Ukraine has done, turning over evidences against alleged terrorists to the ICC and allowing the independent judiciary to give a fair and unbiased judgment. By following suit, Pakistan would not only be able to successfully prosecute terrorists, but convictions – and acquittals – would be above reproach because there could be no claim of favoritism or bias by the international tribunal. Civilian courts would be able to return their attention to decided cases required by the common man, and Army would be able to devote its energy and resources to fighting terrorists.

Despite supporting the aims of the International Criminal Court, Pakistan is one of few remaining countries that has not signed the Rome Statute of the International Criminal Court and refuses to cooperate with the Court. It’s time to change that.

Making decisions in emotion is never a good idea. Our reasoning is distracted and clouded with our feelings. Think of the boy who chooses to run off with a girl that he thinks he is in love with only to realise once the passion had cooled that they were not the ‘soul mates’ as he had thought. Or the husband who acts out a jealous rage only to learn that what his wife was hiding was not an affair but a secret gift she was planning for her beloved. A cooling off period is needed – one that allows a return to reason so that the facts can be investigated objectively and a decision made based in reality and not fear or anger or passion. How could the brutal killing of 141 innocent lives at the hands of terrorists be anything but an emotional event for the nation? And yet I fear that it is in this emotional state that decisions are being made which, under the cooler light of reason, will appear to be made in haste.

The decision to create military courts is no small matter. This is proven by the fact that it requires no less than amending the Constitution. The decision, then, should not be taken lightly. The justifications, however, do not really add up. First, there is the claim that civilian courts cannot try terrorists due to problems of security. Certainly there is some evidence for this. The Pakistan judge who convicted the terrorist assassin Mumtaz Qadri was forced to flee the country in fear for his life, as well as reports that anti-terrorism cases are often acquitted due to intimidation of witnesses, police, and the courts themselves. Therefore, the order of the day is for military courts.

But wait. If the problem is one of security, why doesn’t the military simply provide the necessary security to the existing civilian courts? Why must the military take over the actual role of judiciary instead of simply fulfilling its own role as guarantor of security? This would strengthen the civilian judiciary while also avoiding any suspicion of military overreach.

The other most commonly given justification is that conviction of hardened terrorists requires the use of evidence gained through sensitive intelligence operations. This too sounds convincing enough until one thinks about it for a minute. There is no question that sensitive intelligence operations and procedures must be kept secret, but does that require military courts? Couldn’t civilian anti-terrorism judges be cleared to hold in camera sessions with intelligence officers to review sensitive material? This would also strengthen the credibility of existing courts while demonstrating that the military was truly cooperating and not trying to expand its authority.

Whether or not the brutal attack in Peshawar has finally woken the nation from its slumber only time will tell, but effective means of countering the terrorist threat requires decisions made with calm reason. Military courts may be the fashionable idea of the moment, but under close review, the justifications don’t hold up. Actually, they could even be counter-productive if they are seen as an attempt by the military to expand its authority at the expense of democracy – a feeling that is already starting to emerge.

It is with this view that many are supporting the establishment of military courts that should be able to not only protect the judges and lawyers involved, but also use critical evidence without exposing sensitive intelligence methods and sources. But military courts have their own problems.

The drawback being discussed most often is the harm that will be done to credibility of the civilian judiciary if the military takes over this function of government. However, the civilian judiciary has already destroyed most of its own credibility as noted above. The bigger question should be whether a military court will be any more likely to tackle the complex problem of jihadi extremism or whether it will be another weapon against the Army’s existing enemies.

There is no doubt that military courts will be busy and that convictions will be swiftly delivered, but other doubts remain. Will military trials include groups friendly to Army like Jamaat-ud-Dawa? Or will the courts be another weapon against those considered enemies like BLA? Will military courts be used to silence those who project pro-Taliban ideology like Abdul Aziz? Or will they be used to silence those who ask embarrassing questions like Saleem Shahzad? Will military courts expose the jihadi networks, or will they perpetuate the narrative that every terrorist is part of RAW-CIA-Mossad conspiracies?

There is little doubt that civilian courts are not up to the task of trying and convicting hardened terrorists. Unfortunately, there is little reason to believe that military courts will be much better.

Update: This post originally included a photograph that claimed to show a judge kissing convicted terrorist Mumtaz Qadri. The authenticity of this photograph has been disputed and the image has been removed.

Nawaz Sharif has lifted the ban on death penalty, and Gen Raheel has signed the death warrants for six convicted terrorists. The reaction has been fairly predictable, with right-wing hypernationalists beating their drum to hang someone, anyone, in the streets and left-wing human rights activists worrying about whether death penalty makes us no better than the killers we are killing. I have a different opinion than either of these. I’m not going to lose any sleep over whether a terrorist loses his life. Hang him if it makes you feel better. Hang him from a lamp post if something about that makes you feel more like a man. But don’t expect me to be there cheering it on, either, because it won’t matter. It won’t make one bit of difference.